[Senate Hearing 112-526]
[From the U.S. Government Publishing Office]
S. Hrg. 112-526
A REVIEW OF THE OFFICE OF SPECIAL COUNSEL AND MERIT SYSTEMS PROTECTION
BOARD
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HEARING
before the
OVERSIGHT OF GOVERNMENT MANAGEMENT,
THE FEDERAL WORKFORCE, AND THE
DISTRICT OF COLUMBIA SUBCOMMITTEE
of the
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
MARCH 20, 2012
__________
Available via the World Wide Web: http://www.fdsys.gov
Printed for the use of the Committee on Homeland Security
and Governmental Affairs
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri ROB PORTMAN, Ohio
JON TESTER, Montana RAND PAUL, Kentucky
MARK BEGICH, Alaska JERRY MORAN, Kansas
Michael L. Alexander, Staff Director
Nicholas A. Rossi, Minority Staff Director
Trina Driessnack Tyrer, Chief Clerk
Joyce Ward, Publications Clerk and GPO Detailee
OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL WORKFORCE, AND THE
DISTRICT OF COLUMBIA SUBCOMMITTEE
DANIEL K. AKAKA, Hawaii, Chairman
CARL LEVIN, Michigan RON JOHNSON, Wisconsin
MARY L. LANDRIEU, Louisiana TOM COBURN, Oklahoma
MARK BEGICH, Alaska JERRY MORAN, Kansas
Lisa M. Powell, Majority Staff Director
Bryan G. Polisuk, Counsel
Rachel R. Weaver, Minority Staff Director
Jena McNeill, Professional Staff Member
Aaron H. Woolf, Chief Clerk
C O N T E N T S
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Opening statement:
Page
Senator Akaka................................................ 1
Prepared statement:
Senator Akaka................................................ 21
WITNESSES
Tuesday, March 20, 2012
Hon. Susan Tsui Grundmann, Chairman, Merit Systems Protection
Board.......................................................... 3
Hon. Carolyn Lerner, Special Counsel, U.S. Office of Special
Counsel........................................................ 5
Alphabetical List of Witnesses
Grundmann, Hon. Susan Tsui:
Testimony.................................................... 3
Prepared statement........................................... 23
Lerner, Hon. Carolyn:
Testimony.................................................... 5
Prepared statement........................................... 36
APPENDIX
Background....................................................... 41
.................................................................
A REVIEW OF THE OFFICE OF
SPECIAL COUNSEL AND MERIT
SYSTEMS PROTECTION BOARD
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TUESDAY, MARCH 20, 2012
U.S. Senate,
Subcommittee on Oversight of Government
Management, the Federal Workforce,
and the District of Columbia,
of the Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:32 p.m., in
Room 342, Dirksen Senate Office Building, Hon. Daniel K. Akaka,
Chairman of the Subcommittee, presiding.
Present: Senator Akaka.
OPENING STATEMENT OF CHAIRMAN AKAKA
Chairman Akaka. I call this hearing of the Subcommittee on
Oversight of Government Management, the Federal Workforce and
the District of Columbia to order.
Aloha and good afternoon. I would like to thank you all for
joining us today at this hearing to review the Office of
Special Counsel (OSC) and the Merit Systems Protection Board
(MSPB).
I would like to welcome our two very distinguished
witnesses--Special Counsel Carolyn Lerner and Chairman Susan
Grundmann.
The Civil Service Reform Act (CSRA) of 1978 created the
Office of Special Counsel and the Merit Systems Protection
Board to safeguard the merit system principles to help ensure
that Federal employees are free from discriminatory and
retaliatory actions, especially against those who come forward
to disclose government waste, fraud and abuse.
I believe these two agencies to be among the most important
to Federal employees. At a time when resources are limited,
both agencies provide essential protections to employees so
they can perform their duties in the best interests of the
American public.
The Board is responsible for monitoring the Federal
Government's merit-based system of employment by hearing and
ruling on Federal employees' appeals of job removals and other
major personnel actions. The Board also reviews the Office of
Personnel Management (OPM) rules and regulations, and conducts
studies that evaluate Federal merit systems policies,
operations and practices.
OSC is charged with protecting Federal employees and job
applicants from prohibited personnel practices (PPPs) like
reprisal for whistleblowing. OSC serves as a safe and secure
channel for Federal workers who wish to disclose violations of
law, gross mismanagement or waste of funds. In addition, OSC
enforces and provides advisory opinions regarding the Hatch Act
and protects the rights of military veterans and reservists
under the Uniformed Services Employment and Reemployment Rights
Act (USERRA).
The laws that the Board and OSC enforce are key protections
for the Federal workforce and for government accountability,
more broadly. For more than a decade, I have worked to reform
protections for Federal whistleblowers. Whistleblowers play a
key role in making the government more effective and save the
Federal Government money. Enacting the Whistleblower Protection
Enhancement Act (WPEA) is one of my top priorities.
Additionally, earlier this month, I introduced legislation
to modernize the Hatch Act. Congress has not amended this law
since 1993. My bill would remove the prohibition on State and
local employees running for partisan elected office, a
prohibition that currently drains OSC of resources and often
results in qualified, dedicated public servants not being
permitted to run for office. The bill also would provide the
Board with more flexibility in issuing penalties for violations
and would treat District of Columbia employees like other State
and local employees. This common sense legislation would
provide a much needed update to the law and would allow OSC to
use its limited resources more efficiently.
As a senior member of the Veterans' Affairs Committee and a
veteran myself, I believe one of the Federal Government's most
sacred responsibilities is to care for our Nation's warriors
after they return home. Our dedicated service members should
not be worried about finding employment or returning to work
after the completion of their service. I expect protecting
veterans' rights to be among the highest priorities of these
agencies.
Finally, as our Nation faces pressing fiscal challenges and
tough budget choices, we must remember that safeguarding the
merit system and protecting whistleblowers are critical to an
effective, accountable and efficient government. We must
provide the Board and the OSC the resources they need to do
their important work.
With that, I would like once again to thank everyone for
being here today, and I am looking forward to hearing from our
witnesses.
Our first panel is--and it is really my pleasure to
welcome--Susan Grundmann, Chairman of the Merit Systems
Protection Board, and Carolyn Lerner, Special Counsel of the
United States Office of Special Counsel.
It is a custom of this Subcommittee to swear in the
witnesses, and I will ask both of you to stand and raise your
right hand.
Do you solemnly swear that the testimony you are about to
give this Subcommittee is the truth, the whole truth and
nothing but the truth; so help you, God?
Ms. Grundmann. I do.
Ms. Lerner. I do.
Chairman Akaka. Thank you.
Let the record show that the witnesses answered in the
affirmative.
I want you both to know that although your remarks are
limited, you can give your statement and your full statements
will be included in the record.
So Ms. Grundmann, will you please proceed with your
statement?
TESTIMONY OF HON. SUSAN TSUI GRUNDMANN,\1\ CHAIRMAN, MERIT
SYSTEMS PROTECTION BOARD
Ms. Grundmann. Thank you, Mr. Chairman. It is an honor to
come before this panel to discuss the steps that the Merit
Systems Protection Board has taken during my tenure as Chairman
to ensure that the agency fulfills its statutory responsibility
to protect the Federal merit systems.
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\1\ The prepared statement of Ms. Grundmann appears in the appendix
on page 23.
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Joining me today is my colleague and friend, the Vice
Chair, Anne Wagner, and members of our senior staff, whom we
welcome.
Mr. Chairman, my chairmanship of the MSPB began in November
2009 and, fortuitously, coincided with President Obama's
issuance of the Open Government Executive Order, an order that
heralds an unprecedented level of transparency in the Federal
Government. Transparency is now a core value at MSPB. It guides
our efforts to promote and safeguard the Federal merit systems
and principles through our adjudication and our studies
function.
Transparency has played a major role in our adjudication
function. We have resurrected the practice of oral arguments on
legal issues of significant agency or governmentwide impact.
These issues are briefed, argued and presented before the Board
and interested members of our community and the public.
In addition, the Board now routinely calls for amicus
briefs on significant issues of wide-ranging impact, allowing
the parties and stakeholders to weigh in on a particular rule
interpretation and influence. These briefs serve to educate and
inform the Board as the members deliberate on the cases that
come before us.
Transparency has also resulted in the changing of the
format of the Board's decisions. Since June 2010, the Board has
issued more detailed and reasoned decisions in a
nonprecedential form. This new format takes the place of the
summary denial, or short form, that the Board has traditionally
used and provides the parties with additional information about
the rationale for the outcome.
This format has assisted in the review of our decisions by
our controlling court, the U.S. Court of Appeals for the
Federal Circuit. As a result, we believe our affirmance rate by
the Federal Circuit is now 98 percent; it is at an all-time
high.
And yet, there is more to come. The MSPB is currently in
the process of a comprehensive review of our adjudication
regulations, the first thorough examination and potential
revision since our inception in 1978. We are undertaking this
endeavor transparently, with the support and interactive
engagement of stakeholders, sister agencies and customers in
the MSPB community.
And while our adjudication function allows us to resolve
existing disputes, our statutory studies function permits us to
suggest best practices and recommend improvement and to examine
whether the workforce is managed under the merit systems
principles without prohibited personnel practices. We approach
this function with transparency.
Beginning early 2010, the Board embarked on a series of
outreach activities with stakeholders including agency
representatives, the private bar, union officials, good
government affinity groups and our sister agencies. These
meetings culminated in late 2010. We held our first entirely
open government in the Sunshine Act Meeting in over 10 years.
This meeting was specifically dedicated to our national
research agenda. And for the first time, instead of presenting
our stakeholders with a list of topics, we asked them to
suggest topics of their own. Their suggestions will guide our
studies program for the next 3 to 5 years.
We also plan to study the merit principles system as it
affects performance motivation in the Federal Government,
preserving the integrity of the merit system by addressing
perceptions of favoritism and managing public employees in the
public interest. We believe these studies will help strengthen
merit, improve adherence to the merit principles systems and
prevent prohibited personnel practices which will, in turn,
improve service to the public and provide value to the
taxpayer.
We hope that these reports, like our recent reports on
prohibited personnel practices and barriers to whistleblowing,
will be useful to Federal agencies, such as the Office of
Special Counsel in advancing their missions and purposes.
When Congress passed the Civil Service Reform Act of 1978,
it separated the creator of personnel rules for Federal
employees from the adjudicator of those rules. Congress also
gave the Board an independent statutory mission which is
essentially a marriage between our adjudication and our studies
function; that is, to study the significant actions of the
Office of Personnel Management.
We have, in this context, reviewed OPM regulations directed
at the Federal Career Intern Program (FCIP), the Outstanding
Scholar Program and suitability determinations and limitations
in addition to regulatory topics touched on through oral
argument.
Outside of our adjudication function, we plan to review in
our 2011 Annual Report an update to OPM's hiring reform,
incorporating telework into government dismissal and closure
procedures, among other rules.
Unfortunately, we do face many of the same challenges that
the other Federal agencies--confront, which is tightening
budgets and retirements. Our greatest concern is indeed the
vast wave of retirements we face internally at MSPB. In the
next 2 years, over 30 percent of MSPB's workforce will be
retirement-eligible, and 47 percent of that number is the
administrative judges (AJs) who are responsible for issuing
initial decisions in thousands and thousands of individual
cases every year.
Because it takes approximately 2 years of training before
an AJ can work independently, retirement, recruitment and
training are extremely pressing concerns, particularly if
appeals increase in the areas of retirement, veterans' work,
veterans' claims and as a result of agency restructuring due to
tightening budgets.
Mr. Chairman, you and your distinguished Subcommittee have
been our strong supporters of our work and mission. Thank you
for your leadership during your successful tenure as either
Chairman or Ranking Member of this Subcommittee and its
predecessor subcommittees. You have been a champion for
effectiveness and efficiency in the Federal Government, an
early advocate for greater workforce flexibilities, such as
telework, and a consistent voice for fair treatment of Federal
employees. Your efforts to protect the rights of whistleblowers
are renowned, and your ability to bring legislation to the
Senate floor, important legislation, is notable indeed.
Thank you for this opportunity to talk about the important
work we do. I look forward to answering your questions.
Chairman Akaka. Thank you very much, Chairwoman Grundmann.
Ms. Lerner, will you please proceed with your statement?
TESTIMONY OF HON. CAROLYN LERNER,\1\ SPECIAL COUNSEL, U.S.
OFFICE OF SPECIAL COUNSEL
Ms. Lerner. Thank you. I am delighted to be here today to
testify about the United States Office of Special Counsel. It
is also an honor to be on this panel with MSPB Chair Grundmann.
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\1\ The prepared statement of Ms. Lerner appears in the appendix on
page 36.
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I am joined today by senior members of my agency, and I
would like to recognize them and thank them for their support
as well.
Chairman Akaka, before I go into the good work being done
by the Office of Special Counsel, I would like to take just a
moment to commend you for the phenomenal work that you have
done in Congress. Throughout your long career, you have been a
leader in advancing stronger whistleblower protections for
Federal employees, most recently, with the reintroduction of
the Whistleblower Protection Enhancement Act.
When we spoke last week, you told me that after serving for
so many years in the Congress you wanted to be able to spend
more time with your many children, grandchildren and great
grandchildren in Hawaii. And you and they certainly deserve
that opportunity, but please know that your other family, the
family of the Federal workforce, deeply appreciates all that
you have done for them and your service on their behalf.
It has been an honor to get to know you, and I look forward
to working closely with you over the next few months to see the
Whistleblower Protection Enhancement Act enacted and to reform
the Hatch Act.
It was just a little over a year ago that I was here for my
nomination hearing. Since then, much has changed at the Office
of Special Counsel, and I am pleased to have this opportunity
to share these changes with you today.
The Office of Special Counsel safeguards the merit system
for over 2.1 million Federal employees. We have four distinct
missions: We protect employees from prohibited personnel
practices, particularly retaliation. We provide a safe and
secure channel for employees to disclose waste, fraud and
abuse, and health and safety violations. We enforce the Hatch
Act, which keeps the Federal workplace free from political
coercion and improper partisan politics. And we protect the
employment rights of veterans and service members.
We fulfill these roles with a career staff of about 110
employees and the smallest budget of any Federal watchdog
agency.
In the past, I have talked about how the OSC is the best
kept secret in government. I am pleased to report that seems to
be changing. Caseloads are increasing in all of our programs.
In just one important area, whistleblower disclosures, our
numbers are up 32 percent over last year's levels. But while
our workload increases at record rates, OSC's budget has
remained relatively flat.
Even with our modest budget, the OSC gets a lot of bang for
the buck. We know that whistleblower disclosures save tax
dollars and make the government more efficient.
For example, in one recent case, a whistleblower disclosed
that the Army had failed to properly review an $8 million
contract, resulting in a substantial overpayment to the
contractor. OSC's efforts will result in a significant recovery
of tax dollars and reforms that will help prevent something
like this from happening again.
In another case, a Department of Homeland Security (DHS)
whistleblower told OSC that more than 145 border patrol
officers were improperly being paid overtime. By stopping these
payments, the government saved approximately $2 million
annually at just one DHS facility. And because of OSC's
intervention, the Border Patrol instituted an agencywide policy
to improve the use of overtime and prevent something like this
from happening again.
These types of results are not unique. OSC's efforts to
support whistleblowers often stop both the immediate problem
and spark wider reforms.
Indeed, this was the result when whistleblowers at the U.S.
Military's mortuary in Dover disclosed the improper handling of
human remains. After OSC intervened, the Air Force took wide-
scale corrective action. Our report also prompted other
whistleblowers to come forward and report the dumping of
remains in a landfill. The Air Force is now better able to
uphold its sacred mission on behalf of fallen service members
and their families.
Beyond specific casework, since I took office, we have
launched several important new initiatives, and I want to talk
about just a few of them. I will start with one that I know is
on your list as well--Hatch Act reform--and I thank you,
Senator Akaka, for introducing the Hatch Act Modernization Act
of 2012.
This bipartisan, good government legislation will prevent
unnecessary Federal interference with State and local
elections, and it will allow well qualified candidates to serve
their communities. It will also fix the overly restrictive
penalty structure that currently exists for Federal employees.
A second initiative that I launched is the Retaliation
Pilot Project. This project allows employees from any of our
units to spend 6 months in the Investigation and Prosecution
Unit, working on whistleblower retaliation cases. It is already
beginning to reduce our backlog, and it also provides a great
professional development opportunity for our employees.
Third, I have strengthened OSC's Alternative Dispute
Resolution Program (ADR). We have brought in an expert mediator
and partnered with the Federal Mediation and Conciliation
Service with an interagency agreement. A strong ADR program
helps resolve many cases without resource-intensive
investigations and litigation. It also provides for quicker and
better results for both employees and agencies alike.
Finally, we initiated a demonstration project for the
Uniformed Services Employment and Reemployment Rights Act
program. This project significantly increases OSC's role in
protecting the employment rights of veterans and service
members.
So in conclusion, over the last 8 months, we have been very
busy and we have been very productive.
I thank you, and I thank this Subcommittee for its
continued support of our important work, and I look forward to
answering your questions.
Chairman Akaka. Thank you very much to both of our
witnesses.
I would like to thank you both for you leadership in these
important areas.
My first question to both of you is your agencies'
statutory missions are intertwined with each other's, along
with the statutory missions of the Office of Personnel
Management, the Federal Labor Relations Authority (FLRA) and
the Equal Employment Opportunity Commission (EEOC).
What are your agencies doing to work together? What are you
doing to work together along with other sister agencies in the
Federal Government to protect Federal employees?
Any one of you may begin.
Ms. Lerner. I am happy to start or I will defer to you,
Susan.
Ms. Grundmann. Go ahead.
Ms. Lerner. OK, I will start on this one.
We do have several sister agencies, and we have been
working hard to establish ties with all of them, really.
And the MSPB is certainly our closest sister agency, both
figuratively and literally. We are about a block away from each
other, and our work is so closely linked. In fact, the OSC used
to be part of the MSPB.
Some of the things that we have done to establish a better
relationship, from the very simple, like visiting the MSPB--our
senior staff went over and met with the entire agency, and they
will reciprocate for us. We have consulted with the MSPB when
we were setting up our mediation program. We filed an amicus
brief when the Board called for them on the security clearance
issue. We have been more actively seeking formal stays from the
MSPB, and that helps us to get voluntary stays as well from
agencies. And, we have been using their reports. In particular,
I have used their report on employee perceptions of prohibited
personnel practices and barriers to making disclosures in doing
outreach.
You mentioned the EEOC as well, and we have been reaching
out to them. We are working right now on a work-sharing
agreement, or a memorandum of understanding (MOU), to more
efficiently process mixed cases.
I have met with the head of the Office of Federal
Operations about ways to do outreach to Federal agencies.
I have met with Commissioner Feldblum regarding sexual
orientation cases, and their representatives have attended one
of our stakeholder meetings on LGBT issues.
You mentioned the (FLRA), and I have also met with the head
of that agency, Carol Pope, regarding best practices in agency
management.
And, OPM continues to refer cases to us, and we continue to
have a strong working relationship with them.
So we are trying very hard to coordinate with our sister
agencies and find ways to work together.
And I will just mention one more agency--the Federal
Mediation and Conciliation Service. I mentioned in my opening
statement we entered into an interagency agreement with them to
help us be more efficient in the way we provide mediation
services. And they have offices all across the country, and so
it is very good for us to be able to have cases mediated out in
the field. It saves us money, it is more efficient, and it is a
better use of resources.
So there are lots of ways to work together, and we are
exploring them all.
Chairman Akaka. Thank you very much for your response,
Special Counsel Lerner. Chairman Grundmann.
Ms. Grundmann. Thank you, Mr. Chairman.
Like the Special Counsel, we have interacted in many ways
with all our sister agencies, and we do so with a certain
amount of respect for the various jurisdictions as we are the
adjudicator of many of the things that come before us.
But that aside, going back at least over a year, each of
these agencies that you have mentioned.
And a problem that has paid a visit to the MSPB, their
leadership. They have brought their processes, their vision,
their goals and their challenges before us to share in front of
all our agency employees.
With respect to particularly if we look at the adjudication
regulations and our review of our adjudication regulations, our
proposed regulations have gone out to OPM, to the Special
Counsel, to EEOC, asking for their input before we go into the
public rulemaking process.
As Ms. Lerner mentioned, we do issue routine calls for
amicus briefs. We have done, so far, eight in the last 2 years,
and all these agencies participate when they believe it is
appropriate.
And finally, we have designed a strategic plan. It is
unveiled on our Web site. Copies of the draft strategic plan
went to all the agencies for their input and their assessment.
We understand that we received some very positive statements
from our stakeholders, from our sister agencies, and even in
the early days of Special Counsel Lerner's arrival we worked
with her team to design their strategic plan.
So it is a good working relationship with all these
agencies, bearing in mind the role that we take.
Chairman Akaka. Well, thank you very much. I am glad to
hear your responses.
I have often said that a problem that our government
organizations have, and our government really, is that, because
of its size, it can be unwieldy.
When I was Chairman of the Veterans' Affairs Committee and
also senior member of the Armed Services, I worked to improve
communication between Federal officials, and now the
secretaries and deputy secretaries speak to each other. And I
smile because it has been something that has saved time. By
lifting the phone, we can talk to each other and things get
done. And there are no letters that need to be written, and so
things really move quickly.
Of course, this is important. Communication needs to exist
throughout the Federal Government. So I am glad to hear that
you are both able to do as much of that as possible, because it
will certainly save time and make the government more
effective.
Ms. Grundmann and Ms. Lerner, the 1978 Civil Service
reforms separated your agencies from the previous Civil Service
Commission. The OSC originally was part of the Board, but the
1989 whistleblower reforms separated your agencies from each
other.
Will you please discuss your agencies' respective roles and
why it is important for them to function independently of other
Federal workforce agencies? Ms. Grundmann.
Ms. Grundmann. Let me take a shot at it.
The separation is important. It is significant in that the
Civil Service Reform Act separated a number of agencies in our
view, to maintain our neutrality and our impartiality in
adjudicating whether the merit systems are being protected and
whether the public interest is served in a civil service free
of prohibited personnel practices.
That separation from OPM, the creator of the rules for
Federal employees, and from the OSC, the prosecutor, if you
will, of claims of violations of prohibited personnel
practices, has allowed a balance. They review the cases; they
bring their cases; they adjudicate the cases, with us at arm's
length. And as such, we are able to deal with it with
impartiality.
I think the relationship is good in that sense. It does not
preclude any of the agencies from being collegial in nature,
but it certainly preserves the original purpose for which we
were intended to be formed.
Chairman Akaka. Thank you for your response. Ms. Lerner.
Ms. Lerner. I will just add a couple things, and that is
for the Office of Special Counsel in particular--let me put my
microphone on.
For the Office of Special Counsel, our role really is in
many ways to be an independent reviewer of agencies' actions,
at least in the disclosure area.
So for example, when we receive a disclosure from an agency
and we make a determination there is a substantial likelihood
that the disclosure is valid, we have to then send it back to
the agency and ask them to do an independent investigation. We
review their investigation and send it back if we need more
information or sort of act as a second pair of eyes, to make
sure that what the agency has done really is legitimate and is
going to solve the problem.
So we have to have some independence from the agencies, and
it is an independence that often Inspectors General do not have
within an agency.
That being said, there are so many areas where we can work
collaboratively with agencies as well. One of them is in
outreach and education. We do that a lot with our Hatch Act
Unit, in particular, as well as USERRA. Virtually every one of
our units is actively involved in outreach and education and
trying to prevent problems from happening in the first place.
We are hoping to be able to revive our 2302 certification
program as well. That will give agencies goals to meet and
better protect the Federal workforce from violations of the
Civil Service rules and USERRA and the Hatch Act.
Chairman Akaka. Thank you very much for your response.
Ms. Lerner, as I mentioned in my opening statement, my bill
to modernize the Hatch Act would eliminate the current
prohibition on State and local employees running for partisan
elected office. How does this prohibition affect your office,
both in terms of resources and its ability to fulfill other
statutory obligations?
Ms. Lerner. Well, the Hatch Act obviously has a very
important function which is keeping political coercion out of
the Federal Government, and stopping misuse of official office.
But there are two really serious problems that need fixing, and
your legislation would fix them both.
The first is the impact on State and local cases. You asked
about the impact on our agency of those cases. Forty-five
percent of the cases in the Hatch Act Unit right now involve
investigating State and local political campaign cases. So over
500 investigations in the last 2 years have involved just these
State and local campaign cases. The caseload would be
significantly higher if you counted within that number the
informal and formal advisory opinions beyond just the
investigations that take place.
Right now, the law impacts thousands of State and local
employees across the country every year, and these are not
people who have done anything wrong. They just want to run for
local office and serve their communities. So it has a very big
impact both on our agency and on State and local employees all
across the country.
If I can just give you a couple of examples of the types of
cases that we have had to be involved in: Routinely, we have to
tell deputy sheriffs that they cannot run for sheriff because
of the influx of Federal funding into those departments. And
who better to run for sheriff than a deputy?
We have had to tell an ambulance driver he could not run
for county coroner because he transports Medicaid patients.
We had to tell a local transit officer in a canine unit
that he could not run for school board, an unpaid position,
because his dog was paid for with Federal funds.
These are the types of cases that we have to get involved
in all the time.
And the legislation would really help us use our resources
better because these State and local cases require very fact
intensive investigations to try and show whether there is in
fact a connection to the Federal funds. So it takes a lot of
time to investigate these cases.
If we could reallocate our resources, we could focus on
cases where there is coercion or actual misconduct. We could do
more education and outreach, which I think is vital to
preventing Hatch Act violations in the first place.
In this Federal election year, we are going to have a
tremendous influx of cases, and we will need to put more
resources into those cases. So we would like to be able to
prioritize these areas and use our resources in that way.
Chairman Akaka. Thank you.
Ms. Lerner, your office also recommended that penalty
provisions of the Hatch Act be amended so that the Board will
have more flexibility in issuing penalties when violations of
the law occur. Will you please discuss why your office made
this recommendation?
Ms. Lerner. Sure. Well right now, there is only one penalty
for any level of infraction regardless of other factors, and
that is if someone is found to be in violation the presumptive
penalty is always termination. Now, it can be mitigated down to
30 days with a unanimous decision by the Board. But in fact, it
really is not fair right now, that this is the only penalty,
and it is unlike any other violation for a Federal employee,
where there is a range of penalties. The Hatch Act only has the
one, and it is a very severe penalty of termination.
We think that agencies are hesitant sometimes to refer
cases to us because they do not want to lose an otherwise good
employee who they know can be terminated for what could be a
very minor violation.
So we believe that it would be in everyone's interest to
fix this part of the law, to provide for a range of penalties.
And I think it reflects well on the Federal Government to be
fair about this kind of thing.
Chairman Akaka. Thank you.
Ms. Grundmann, you mentioned a number of Board studies, and
I am so glad that we have a group that can conduct those
studies. It is my understanding that a number of studies are
currently pending, addressing issues such as violence in the
workplace, fair hiring practices and motivating strong employee
performance. I would like to hear more about the Board's
current work and how you believe it will contribute to a more
productive Federal workforce.
Ms. Grundmann. I would be happy to talk about it. Let me
first talk about the violence in the workplace report. And let
me begin by noting that all these reports that we are going to
talk about are subject to the review and the approval of the
Board members, and the Board members have not seen these
reports yet, but they are vetting internally within the agency.
With respect to the violence in the workplace report, that
is, interestingly enough, something that the stakeholders
wanted us to study. So we are following through on that request
or recommendation.
And what we are finding is that violence in the workplace
leads to, of course, lost work time, low morale, increased
employee turnover.
We are looking toward developing objective criteria in
terms of the frequency and the nature of this type of violence
and perhaps an enhanced data collection proceeding. Eventually,
we hope to help agencies craft their own anti-violence programs
using the findings of this report.
The second report that is significant is the performance
motivation in Federal Government, linkages, potential linkages
and performance, and that is a relevant report in this time
because we are dealing with tightening budgets, pay freezes,
lower bonuses and loss of training dollars for development and
progress of employees.
The question we present is how you keep Federal employees
motivated in this environment where rewards may not necessarily
be monetary in nature. So we will be designing a series, or
offering a series, of nonmonetary incentives that agencies can
provide employees.
This report is also based on our 2010 Merit Principles
Survey, and in it, we look for items that will identify factors
that will elicit efforts and performance above and beyond the
minimum. So again, motivation.
The final report I would like to talk about is managing
employees in the public interest, and this is also based on our
2020 Merit Principles Survey.
And the interesting thing about our surveys is one survey
is conducted, but it produces multiple results for multiple
reports. So no data is ever wasted, and the reports actually
build on each other.
This time we will be looking at Federal agencies' adherence
to the nine merit principles from the employees' perspective.
And it will be hopefully insightful to our stakeholder
community in addition to the agencies, as to how effectively
and efficiently Federal employees are managing their workforces
in terms of hiring, in terms of employment, in terms of
retention, and identifying areas of improvement.
Chairman Akaka. Thank you very much.
Ms. Lerner, your testimony mentions that OSC is effectively
handcuffed by court decisions narrowing the Whistleblower
Protection Act. Would you please elaborate on that problem as
well as the practical implications it has for those who come
forward to disclose waste, fraud and abuse or illegal activity?
Ms. Lerner. Sure. Right now, we are really handcuffed by
court decisions that have narrowed the scope of protections and
the definitions of who is actually protected by the
Whistleblower Protection Act.
We can always weed out frivolous claims. In fact, a fairly
small percentage of complaints actually gets investigated and
prosecuted, but right now we cannot protect employees who blow
the whistle during the course of their job duties, during the
ordinary course of their job duties. For example, an auditor
who finds waste in a government contract and blows the whistle
about that is not protected under the Whistleblower Protection
Act. Safety inspectors are not protected.
The Whistleblower Protection Enhancement Act, which you
have introduced, would restore Congress's intent to protect
whistleblowers for any lawful disclosure of waste, fraud,
abuse, health or safety violation regardless of their position.
The other way that we are really handcuffed by the current
law is in the area of disciplinary action. If we can take
disciplinary action against wrongdoers, that can have the
effect of deterring retaliation from happening in the first
place.
We cannot do it effectively now though. The burden is just
too high, and we are required to pay attorneys' fees if we lose
before the Merit Systems Protection Board regardless of whether
we were justified in bringing the disciplinary action in the
first place. With our very small budget, it would be really the
rare case that would justify the high risk of prosecution.
The other way that we are a little bit hamstrung now with
the current law is that we cannot file amicus briefs. With the
Whistleblower Protection Enhancement Act, we could help shape
whistleblower law by filing briefs in important cases. Right
now, we cannot participate at the Federal appeals court level.
The bill would give us limited authority to do so.
Chairman Akaka. Thank you.
Ms. Grundmann, in your testimony, you stated that almost
half of the Board's administrative judges will be eligible to
retire in less than 3 years. Will you please discuss the effect
these potential retirements could have on your agency and what
steps the Board is taking to address this issue?
Ms. Grundmann. I would be happy to. Our workforce, like the
rest of the Federal workforce, is aging. That does not mean
they are any slower or they are any duller. In fact, they are
operating at peak capacity. But knowing that they have been
operating at this incredible level for their entire careers,
many are ready to retire.
Early on, we identified the critical vacancies of this
agency that we needed to plan for in the future, and those are
the administrative judges and the writing attorneys in our
office. Our goal, if we could possibly do it, is to hire a few
administrative judges every year and allow, for that 2-year
period of time, the transference of institutional knowledge
from an experienced AJ to a fledgling AJ.
In addition to that, we hope for mentoring of the two
sides. That is traditionally the kind of training environment
that we have used. It has been very profitable; very
productive. It has been good for our agency.
What we are concerned about is the Board has a culture of
timeliness. We are very timely in the issuance of initial
decisions in the regional and field offices. I believe we
average about 90 days per case in the regional and field
offices. That number will go up as the number of judges
declines.
In addition to that, with the influx of cases that we
anticipate from retirement claims, from veterans claims, from
RIF, or restructuring, claims, consequentially, the caseload
will go up. So, it is longer.
We would like to plan for the future. We are planning for
it now. We will make do with what we have now. But if we could
bring in a couple judges every year, that would get us through
this next couple of years and plan for the future so that we
can adjust to any caseload changes that occur.
Chairman Akaka. Thank you.
Ms. Lerner, the Veterans' Benefits Act of 2010 established
a second demonstration project which requires OSC to
investigate and enforce cases brought under USERRA. Will you
please discuss OSC's progress and the challenges associated
with this important statutory requirement?
Ms. Lerner. Sure. The second demonstration project started
in August. So for the next 3 years, we will be the primary
agency in the Federal Government responsible for USERRA
enforcement. We had very good results the first time that we
had the demonstration project, and we are expecting excellent
results this time as well.
We have always been responsible for the prosecution of
USERRA claims after referrals from the Department of Labor
(DOL). The way it was structured before is that the Department
of Labor would investigate the USERRA complaints and send to us
the ones that they believed were worthy of prosecution. Now we
are taking on half of those cases for investigation as well as
prosecution, along with other mixed cases.
So what we will be doing over the next 3 years is
investigating these cases. We will offer mediation to try and
resolve them informally. Where we cannot achieve settlement, we
will litigate them before the Board. And we also hope to do a
lot of education and outreach to agencies to prevent problems
from happening in the first place.
This is a lot to do on our very small and very fixed
budget. So far this year, we have received 90 complaints. We
expect to get about 180 complaints altogether this year.
We only just received some funding for the demonstration
project from the Department of Labor, so we have had to be
pretty creative in our staffing solutions. We have recruited,
for the first time, Presidential Management Fellows to help us.
We are looking into term-limited hires so that we can bring
people on through the end of this fiscal year (FY). We are
trying to use legal interns more. As I mentioned, we are trying
to use mediation more, to resolve cases without investigations
and litigation. And, we are also seeking detailees from other
agencies to help us with USERRA claims.
With the drawdown in Iraq and Afghanistan, we expect even
more cases as vets return home. We are, as an agency, deeply
committed to helping the Federal Government be a model employer
for the protection of veterans' employment rights, and we look
forward to doing a thorough job over the next 3 years with this
demonstration project.
Chairman Akaka. Thank you.
I will ask both of you this, but Ms. Grundmann, as your
Agency's workload has grown, your budget have not kept pace,
and your funding per case has fallen significantly. I would
like to give you an opportunity to discuss your current funding
challenges, and how you are making every dollar count, and why
it is important that Congress give you the resources you need
to do your important work.
Ms. Lerner. Thank you.
I would like to begin by saying that we want to not just do
more with less but to work smarter and we are doing so in a
number of areas.
Many of our employees wear multiple hats. Some work in the
studies department as well as they work in case processing. We
cross-train when we can. In addition to that, we are doing it
now even in these times.
We are making use of video conferencing.
Our electronic filing is up. It was 29 percent in 2007. It
is over 50 percent now. We are piloting a mandatory e-filing
project for attorneys and agencies in our Washington Regional
Office and our Denver Field Office.
And we are looking at more effective ways of delivering our
studies. Originally, it was the hard copy. Then it became the
Web site. And now, we are introducing the mobile app, which
started last year on the iPhone and the Android and is now
headed toward the iPad very shortly.
And of course, we are looking at streamlining our
processes.
At the same time, we are doing cuts the old-fashioned way,
which is decreases in travel, 40 percent across the board,
decreases in equipment and general operations as well. But what
we have committed to our employees is that given the current
level of funding we have committed that nobody goes home and
the lights stay on.
But in order to maintain with the increased case filings--
and let me give you some numbers here--last year, it was over
8,100 cases we processed. The year before, it was 7,800. So you
can see the growth year by year.
In order to maintain that efficiency, that effectiveness,
to be able to produce a case result at the initial level and at
the appeals level in a timely, efficient context, we need more
people. And, we need time to train those people so they can
experience the institutional knowledge that this core group of
employees at MSPB has to offer.
Chairman Akaka. Thank you. Ms. Lerner.
Ms. Lerner. Sure. So our caseloads are up significantly. As
I mentioned before, our caseload is up across the board about
20 percent over the last 3 years. In fiscal year 2011, we had
about 4,000-plus cases, and about 2,500 of those were
prohibited personnel practices complaints. In fiscal year 2012,
we expect about 2,800 prohibited personnel practices
complaints, and we expect an increase as well in every single
one of our units--disclosure, Hatch Act and USERRA.
All of this is happening as our funding levels remain
relatively flat and in fact for fiscal year 2013 our budget is
projected to go down by $280,000. This will result in
potentially a decrease in the number of staff that we have.
Right now, we have about 110 full-time equivalents. If our
funding went down as expected, we will have to reduce our
staffing to about 107 full-time equivalents.
It is a big problem. A lot of our budget--89 percent of
it--is devoted to salaries, benefits and rent. So there is not
really any extra room in there to cut back.
Some of the things that we are doing--as I mentioned, we
are recruiting Presidential Management Fellows to help us
fortify our staff without having to increase our salaries. We
are trying to recruit more interns, trying to use temporary
employees and form alliances with other agencies, like the
Federal Mediation and Conciliation Service.
We are trying to make sure that every dollar that comes to
our agency is well spent and that not a single dollar is
wasted. Some of the small steps I have taken are things like
changing computerized legal service providers. That saved us
$50,000 this year alone. We have stopped getting hardbound
copies of 5 Code of Federal Regulations (CFR), and that saves
about $40,000. We are dividing large offices into two offices,
putting up walls to save on office space. We have converted our
library, which was largely underutilized, so that it can now
hold carrels for extra work space so that we do not have to
spend more money on rent. We have significantly curtailed
travel and extra expenses.
But it certainly hurts. I mean, day to day our hands are
tied on things like ordering transcripts in our investigations.
We had a huge investigation of the Port Mortuary and could not
afford to have transcripts done, and so our attorneys had to
listen to hundreds of hours of tapes in putting together a
report, and that really does affect how we do our job.
Not having adequate staffing for the demonstration project
has affected how we have done our job in that area. So it is a
serious problem.
We understand that every agency is similarly under the same
types of pressures, but we think that the mission of the Office
of Special Counsel is so important. And the budget is
relatively small. We are talking about $18.5 million, and the
benefits to the government in the work that we do far outweigh
the small budget we have.
So I sincerely hope that we will be able to keep the number
of staff that we have and increase it as we certainly need to
do, with a more realistic budget come fiscal year 2013.
Chairman Akaka. Thank you very much for your response.
Ms. Lerner, during your confirmation hearing, I noted that
employee morale at the Office of Special Counsel was low at
that time and there had been complaints of possible illegal
retaliation at OSC prior to your tenure. You told me that you
would work to improve the workplace environment at OSC with a
focus on increasing employee morale. Will you please discuss
what steps you have taken to address this issue since your
confirmation?
Ms. Lerner. Sure. The first thing I did was to start by
listening. I was able to meet with virtually every employee at
the agency, either individually or in small groups. Because of
the size of our agency--we have about 110 full-time employees--
I really was able to get to know many of them personally and
certainly talk with all of them in some way.
I have made trips to the field offices. I have been to
Dallas and Detroit. I will go to Oakland next week.
We have started to have informal brown-bag lunches that are
open to everyone in the agency to attend, and the folks out in
the field offices can attend by video conference.
We have attended meetings with all of the units so that we
are getting to know their work, and it provides them with an
opportunity to ask us questions as well. We have frequent
meetings, as well, with the senior staff.
So that is the first step--listening and doing outreach
within the agency.
A second step I have taken to try to improve morale is to
provide professional development opportunities. The Retaliation
Pilot Project that I spoke about briefly in my opening
statement has provided many agency employees with an
opportunity to work on whistleblower complaints during 6-month
rotations. Out of 80 eligible employees, 22 applied to
participate in the program, and so that has been a nice source
of professional development and training.
We have begun to offer continuing legal education courses
and more training possibilities for employees at the agency.
And we also have a new pro bono policy that allows people
to do work in their communities, using administrative leave to
do it, up to 20 hours a year.
There are some external influences too that have had an
impact on morale. I have had nothing to do with it, but it has
had a very positive impact, I believe, and that is we have
received a lot of positive press about what the agency has been
doing. I think that really helps employees feel proud about the
work that they are doing.
I think our work speaks for itself. We do excellent work.
We have received excellent results. And it helps for other
agencies and stakeholders to know about it and to recognize it.
So I think that helps.
But the biggest challenge that I think remains for morale
really is workload because, as I mentioned, we have had a
tremendous increase in the number of cases that are filed
without any corresponding increase in resources. So it is a
real challenge to feel like people are able to do everything
they want to be able to do on cases when we are so overwhelmed.
The last thing I will mention about morale is that we are
about to conduct our first Viewpoint Survey through OPM. The
agency had never participated in the survey before, and I think
by participating we will be able to get a better sense of how
employees really are feeling about the workplace.
But overall, I think signs are good that morale has
improved, and we are certainly looking for new and other ways
of making people feel good and valued about their work at the
OSC.
Chairman Akaka. Thank you.
Ms. Grundmann, for the first time since its inception in
1978 the Board is conducting a comprehensive review of its
adjudication regulations. Will you please discuss how you have
included stakeholders and other Federal agencies in this
process as well as the Board's long-term goals for this review.
Ms. Grundmann. This was a rather heavy lift, if one could
call it that. We started last year, and like everything we do
at MSPB, it is agencywide. We took representatives from all
parts of our agencies--judges, writing attorneys, general
counsel's office, the clerk's office and even some of our
studies folks--and we pulled together--we went through the
regulations. I mean, let's go back a little bit.
In the past, the Board has tinkered with particular parts
of its regulations. This is the first time we have gone through
to make sure that the regulations are uniform, clear,
consistent throughout, and streamlining certain processes that
may appear time-consuming or redundant.
So internally, a team got together, a reg review team, and
they met one hour every week. And then, they doubled up. And
they produced an internal document which is a matrix of every
single rule that we have--the current regulation, the proposed
change and the reason for the change.
That document went to stakeholders, approximately 40
stakeholders, and they were private bar, agency
representatives, folks that use the regulation--and sister
agencies--that use the regulations on an ongoing basis. We took
their comments in written format.
And then, as recently as March 6, I believe, we brought
them in to discuss their viewpoints with our team.
We are currently in the process of refining our proposed
regulations with these comments from the stakeholders and from
our community, and we will be going to notice of proposed
rulemaking, we are hoping, sometime early summer. During that
period, there has been discussion of having another open
meeting with the Board members and our community, and
hopefully, we will be finishing up the regulations by late
fall.
So it is a massive undertaking. It could not have been done
without the dedication of very committed staff in headquarters
and certainly the dedication and commitment from all the
stakeholders and the community who took time out of their lives
to review our regulations in detail and to comment upon them as
well.
Chairman Akaka. Thank you very much.
This is my final question to both of you. We have discussed
a number of important issues today. And as I mentioned, it is
clear that your agencies are making progress.
What are your top priorities, moving forward, and how do
you intend to meet these priorities?
You have done well since you have been in your leadership
roles and I am confident you both will continue to do well. I
am looking forward to hearing what your plans are for the
future, as you move forward from this point in time, and how
you intend to meet challenges. Ms. Grundmann.
Ms. Grundmann. Our vision is really a Federal service that
is free of prohibited personnel practices. And looking at the
Federal Government as a whole, the Federal Government does
aspire to be that model employer. And what makes the Federal
Government a model employer are basic tenets and principles
that guide and shape its behavior, and those principles are, of
course, the nine merit principles.
Our goal is to get the word out, to get people thinking,
not just agencies and stakeholders, that these nine principles
are the foundation of Federal employment. They are what makes
Civil Service civil. These principles are with employees before
they become employees, when they are applicants to Federal
positions. They go on the journey with employees, through their
promotion, through their training, throughout their careers and
even follow them into retirement.
In order to achieve this goal, we have to do it two-fold:
First, through adjudication, which is essentially retroactive
in nature and that is maintaining the current level of
excellence and productivity that our judges and our decisions
demonstrate, and it is again, through our studies program,
doing more, because a good studies program, if adhered to, will
actually prevent prohibited personnel practices from occurring.
And let me just give you an example.
In 2005, we did a study on the then-new hiring program
which is the Federal Career Intern Program. In the program, we
noted a number of concerns that we had with the program and
that we encouraged agencies and OPM to implement this new
hiring authority consistent with the merit principles, with EEO
dictates and, of course, with veterans' preference benefits,
veterans' preference rights, which ultimately became the Evans
and Dean case. As a result, that program terminated, and we
understand that OPM is developing a new program in conjunction
with it. So that is one example of how the studies can be used
prospectively.
Can we expand the program? Part of the expansion of the
program--we have talked about that third statutory function,
which is the OPM oversight. It is partially envisioned, as we
say in our testimony, in terms of the architects of the Civil
Service Reform Act. They viewed this as a part of our function.
And in order to fully have use of this function we need to
be able to staff for this particular function. Right now, we
borrow from our studies staff, and we do a review of OPM
significant actions. We will do a more extensive review of it
in our 2011 Annual Report, but again, more resources at a time
of tightening budgets and fewer bodies.
And finally, we would like to get through the end of this
adjudication regulation review. It is a fairly large
undertaking for a very small staff, and again, our projected
time is sometime later this fall. We hope to be able to achieve
it, like some of the other good things that we have done. Thank
you.
Chairman Akaka. Thank you very much. Ms. Lerner.
Ms. Lerner. I have a lot of goals for my term. Luckily, I
have a few years left to meet them because I think it is going
to take a little while, but one that I hope we can meet this
year is passage of the Whistleblower Protection Enhancement Act
and passage of the Hatch Act. Both of those laws would help us
do our job much better.
Passage of the WPEA, as I mentioned, would I think make us
viewed as an agency that can really help people when they need
it. Right now, we are in the position of having to tell folks a
lot of the time that we cannot help them because of the court
decisions that have restricted our review of certain types of
cases. So that would be, a No. 1 priority, I think.
Another important priority for our agency, and for me
personally, is restoring OSC's reputation within the Federal
community, and I think there are a couple of benefits to doing
that. One of them is that people will feel like they can come
to our agency for help. They will feel like if they come
forward and report a problem--waste, fraud or abuse, or a
health or a safety problem--there will be a real agency there
to back them up.
I think that will also have an impact on the Federal
community in terms of respecting whistleblowers because the
more we do our job right, I think, whistleblowers will be
viewed better in the Federal community. I want to change the
image of whistleblowing and make it valued within the Federal
community.
A third goal, and this is related to the fact that we have
to do more with less and that we have serious budget
constraints, is to buildup our Alternative Dispute Resolution
Program. I think that the benefits are overwhelming, to using
ADR. As I have mentioned, it can provide quicker and better
results for employees and agencies alike and at the same time
help us reserve our resources so that we are not having to do
intensive investigations and pursue cases through litigation
that can be resolved earlier on.
Most cases do end up getting resolved. If we can do it at
the front end without having to spend 6 months or a year
investigating, it serves everybody's interest. So I hope to be
able to buildup that program.
Those are a few of my goals.
And in conclusion, I guess I just want to thank you again
for your support of both the OSC and for the Federal Government
and Federal employees in general. It is very important to have
support in Congress for the work that we do, and I have
certainly felt it from the beginning of my term, and I just
want to thank you.
Chairman Akaka. Well, thank you very much, both of you.
I want to thank our distinguished guests and witnesses for
attending this hearing and providing thoughtful testimony and
answers to these questions.
I am pleased to hear that the Board and OSC are making
progress in areas critical to improving government performance
and efficiency. As I noted earlier, I consider these two
agencies to be among the most important to Federal employees,
and I look forward to monitoring their continued progress in
fulfilling their statutory obligations and protecting rights in
the workforce. I look forward to keeping in touch and working
together to improve government efficiency and protect the
Federal workers.
Again, thank you so much for being here.
And the hearing record will be open for 2 weeks for
additional statements or questions other Members may have
pertaining to this hearing.
Again, I thank you immensely for your participation in this
hearing. I have been at this for a number of years, and I want
to tell you it is good to hear what I have heard today, and I
look forward to continuing to help the Federal employees of our
country.
So, thank you very much.
This hearing is adjourned.
[Whereupon, at 3:47 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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